Madras High Court
Balasubramanian @ Kutta Balu @ Balu vs The Principal Secretary To Government on 5 September, 2024
Author: C.V. Karthikeyan
Bench: C.V. Karthikeyan, J.Sathya Narayana Prasad
H.C.P.(MD) No.244 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.09.2024
CORAM:
THE HONOURABLE MR.JUSTICE C.V. KARTHIKEYAN
AND
THE HON'BLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
H.C.P.(MD) No.244 of 2024
Balasubramanian @ Kutta Balu @ Balu ... Petitioner
Vs.
1.The Principal Secretary to Government,
State of Tamil Nadu,
Home, Prohibition and Excise Department,
Secretariat,
Fort St. George,
Chennai-600 009.
2.The Commissioner of Police
Office of the Commissioner of Police
Trichy.
3.The Superintendent of Prison,
Trichirappalli Central Prison,
Trichirappalli. ... Respondents
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H.C.P.(MD) No.244 of 2024
PRAYER: Petition filed under Article 226 of the Constitution of India to
issue a writ of Habeas Corpus to call for the entire records connected with
the detention order of the second respondent in C.No.
02/Detention/C.P.O/T.C/2024, dated 05.01.2024 and quash the same and
direct the respondents to produce the body or person of the detenu by
name Balasubramanian @ Kutta Balu @ Balu, son of Thangaraj, aged
about 38 years, now detained as 'Goonda' at Trichy Central Prison, before
this Court and set him at liberty forthwith.
For Petitioner : Mr.R.Alagumani
For Respondents : Mr.S.Ravi
Additional Public Prosecutor
ORDER
The petitioner is the detenu, viz., Balasubramanian @ Kutta
Balu @ Balu, son of Thangaraj, aged about 38 years. The detenu has been
detained by the second respondent by his order in C.No.
02/Detention/C.P.O/T.C/2024, dated 05.01.2024 holding him to be a
"Goonda", as contemplated under Section 2(f) of Tamil Nadu Act 14 of
1982. The said order is under challenge in this habeas corpus petition.
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2. We have heard the learned counsel appearing for the
petitioner and the learned Additional Public Prosecutor appearing for the
respondents. We have also perused the records produced by the Detaining
Authority.
3. Though several points have been raised by the learned
counsel for the petitioner, it is pointed out the detention order wherein, the
detaining authority had referred to the offence in Crime No.204 of 2010
which was registered by Naducauvery Police Station which was originally
registered under Section 392 IPC. The detenu had surrendered before the
learned Judicial Magistrate No.I, Thiruvaiyaru on 30.11.2023 and
remanded to judicial custody. Thereafter, he was formally arrested in the
ground case on 04.12.2023 and produced before the Judicial Magistrate
No.V (FAC), Trichy, through Prisoner on transit warrant for remand. He
was remanded and lodged at Central Prison, Trichy, till 19.12.2023. Later,
the remand was extended till 12.01.2024. It had been observed by the
Detaining Authority that on 10.12.2023, the Section of law was altered to
Section 5 of Explosive Substances Act, 1908, Section 25(1) of Arms Act,
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1959 and Section 392 r/w.397 IPC. It had been further observed that
Section 392 r/w 397 deal with robbery and the offence punishable under
Chapter 17 of IPC. This observation is played upon the mind of the
detaining authority to pass an order of detention against the detenu herein.
4. The learned counsel for the petitioner after pointing out the
aforementioned portion drew the attention of this Court to the alternation
report filed by the Inspector of Police. On 10.12.2023, the application has
been filed by the Inspector of Police, Ponmalai Police Station, Trichy and
presented before the Judicial Magistrate No.V at Trichy seeking
alternation of the offences in Crime No.1025 of 2023 which was
originally under Section 5 of Explosive Substance Act, 1908 to be altered
to Section 5 of Explosive Substance Act, 1908 and 25(i) of Indian Arms
Act, 1959 and further altered to Section 5 of Explosive Substance Act,
1908 and Section 25(i) of Indian Arms Act, 1959 and Section 392 r/w. 397
IPC. This application seeking alteration of the offences was presented on
10.12.2023.
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5. It was contended by the learned Additional Public
Prosecutor that no formal orders would normally be passed by the learned
Judicial Magistrate on receipt of such alteration report.
6. We have our own doubts regarding that particular aspect
since the learned Judicial Magistrate will have to take cognizance of
offence and not of the offender and naturally, when an offence is altered to
further offences, the learned Judicial Magistrate will have to apply his
mind and take cognizance of the same and examine whether the facts as
presented by the prosecution would also attract the offences which are
sought to be altered and added to the offences already registered in the
said FIR.
7. Be that as it may, the learned counsel for the petitioner
further pointed out that page No.66 of paper book which is, according to
the learned Additional Public Prosecutor, a certified copy of the remand
extension order. The name of the Court, the name of the Officer and the
date is given as 03.01.2024. The complainant name is given and the Crime
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Number is given and the offence which is mentioned only Section 5 of
Explosive Substance Act, 1908. This could mean that the learned
Magistrate refused to include the offences as sought to be altered and if he
had consciously refused, then the detaining authority should not have
placed reliance on the fact that the offence had been subsequently altered
to Section 392 r/w 397 IPC and Section 25(i) of Arms Act. The remand
extension order, dated 19.12.2023 remanding the accused who had been
produced through the Media of Video Electronic Link, had been extended
till 02.01.2024 and subsequent remand on 02.01.2024 again on production
of accused through the Media of Video Electronic Link, had been
extended till 12.01.2024 are found in this particular page No.66 of the
paper book.
8. We are not able to understand as to whether the remand
extension was actually on 03.01.2024 and it signifies earlier remand dated
09.12.2023 and 02.01.2024 or whether this was a fresh remand on
03.01.2024. We are not able to decipher the contents of this particular
document naturally. We cannot expect the detenu to understand purport of
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this document which would impair his proper representation to be given
by him and that would affect his fundamental right, to be heard on all
aspects questioning the order of preventive detention order passed against
him. The non-furnishing of legible copy of the vital document would
deprive the detenu of making effective representation to the authorities
against the order of detention.
9. In this context, it is useful to refer to the Judgment of the
Honourable Supreme Court in the case of Powanammal vs. State of
Tamil Nadu, reported in (1999) 2 SCC 413, wherein the Apex Court, after
discussing the safeguards embodied in Article 22(5) of the Constitution of
India, observed that the detenu should be afforded an opportunity of
making a representation effectively against the detention order and that,
the failure to supply every material in the language which can be
understood by the detenu, is imperative. The relevant portion of the said
decision is extracted hereunder:
''9. However, this Court has maintained a
distinction between a document which has been relied
upon by the detaining authority in the grounds of
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detention and a document which finds a mere reference
in the grounds of detention. Whereas the non-supply of a
copy of the document relied upon in the grounds of
detention has been held to be fatal to continued
detention, the detenu need not show that any prejudice is
caused to him. This is because the non-supply of such a
document would amount to denial of the right of being
communicated the grounds and of being afforded the
opportunity of making an effective representation against
the order. But it would not be so where the document
merely finds a reference in the order of detention or
among the grounds thereof. In such a case, the detenu's
complaint of non-supply of document has to be
supported by prejudice caused to him in making an
effective representation. What applies to a document
would equally apply to furnishing a translated copy of
the document in the language known to and understood
by the detenu, should the document be in a different
language.
...
...
16. For the above reasons, in our view, the
nonsupply of the Tamil version of the English document,
on the facts and in the circumstances, renders her
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continued detention illegal. We, therefore, direct that the
detenue be set free forthwith unless she is required to be
detained in any other case. The appeal is accordingly
allowed.''
10. We find that the above cited Powanammal's case applies
in all force to the case on hand as we find that non-furnishing of legible
of the Booklet. This furnishing of illegible copy of remand order to the
detenu, has impaired his constitutional right to make an effective
representation against the impugned preventive detention order. To be
noted, this constitutional right is ingrained in the form of a safeguard in
Clause (5) of Article 22 of the Constitution of India. We, therefore, have
no hesitation in quashing the impugned detention order.
11. In the result, the Habeas Corpus Petition is allowed and
the order of detention in C.No.02/Detention/C.P.O/T.C/2024, dated
05.01.2024, passed by the second respondent is set aside. The detenu,
Balasubramanian @ Kutta Balu @ Balu, son of Thangaraj, aged about 38
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years, is directed to be released forthwith unless his detention is required
in connection with any other case.
[C.V.K., J.] [J.S.N.P., J.]
05.09.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
RM
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To:
1.The Principal Secretary to Government,
State of Tamil Nadu,
Home, Prohibition and Excise Department,
Secretariat,
Fort St. George,
Chennai-600 009.
2.The Commissioner of Police
Office of the Commissioner of Police
Trichy.
3.The Superintendent of Prison,
Trichirappalli Central Prison,
Trichirappalli.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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C.V. KARTHIKEYAN, J.
AND
J.SATHYA NARAYANA PRASAD, J.
RM
(1/2)
05.09.2024
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